January 23, 1915 – Birth of Potter Stewart, 94th Supreme Court Justice

Potter Stewart was born into a powerful Ohio Republican family on this day in history. He attended Yale for both undergraduate studies and law school, made law review, and graduated cum laude in 1941. He took a job at a law firm, but enlisted in the Navy when WWII began, acting as defense counsel in court-martial proceedings.

After the war, Stewart joined a prominent law firm in Cincinnati, and in 1954, President Eisenhower appointed Stewart to a seat on the Sixth Circuit Court of Appeals. In 1958, President Eisenhower named Stewart to a recess appointment to replace retiring Justice Harold H. Burton on the Supreme Court. This was Eisenhower’s third recess appointment, and despite criticism of the practice, Justice Stewart was confirmed by the Senate in a 70-17 vote on May 5, 1959.

US Supreme Court official portrait of Potter Stewart, 1976

Oyez reports that Justice Stewart believed in judicial restraint, seeing the proper function of a judge as interpreting the law as it applied to a particular case, rather than attempting to assert judicial influence over matters he saw best left to the legislature. This put Stewart in the ideological center of the Court, and he became an influential swing vote on many cases.

One of his more well-known opinions was in the obscenity case Jacobellis v. Ohio (378 U.S. 184, 1964). Justice Stewart famously said that while he could not readily define the term “hard-core” pornography, “I know it when I see it.”

Justice Stewart stepped down from the Court in July of 1981 at age 66. He said that his decision was influenced by his desire to spend more time with his grandchildren while he was still in good health. In 1985, he died from a stroke and was buried in Arlington National Cemetery. Upon his death, journalist Bob Woodward revealed that Justice Stewart was the primary source for The Brethren, the seminal book on the inner workings of the Supreme Court.

Rowena Scott Comegys, in her article, “Potter Stewart: An Analysis of His Views on the Press as Fourth Estate,” 59 Chi.-Kent L. Rev. 157 (1982), online here, contends that Justice Stewart’s support for freedom of the press stood out as part of his legacy, writing:

Stewart indicated in judicial opinions and extrajudicial commentary that he believed that the press deserves a special place among American institutions. [He believed] the Freedom of Press Clause was a structural provision of the first amendment, which the framers thought necessary in order to assure “openness and honesty in government. . . an adequate flow of information between the people and their representatives . . . [and] a sufficient check on autocracy and despotism. ‘ ‘ As he said in his speech at Yale in 1974, “If the Free Press guarantee meant no more than freedom of expression, it would be a constitutional redundancy.”

January 12, 1948 – SCOTUS Rules Qualified Black Students in Oklahoma to be Admitted into All-White State Law Schools in Sipuel v. Oklahoma State Board of Regents

Ada Lois Sipuel (later married to Warren Fisher), a Black woman, was born on February 8, 1924 in Chickasha, Oklahoma. She was an excellent student and was her high school valedictorian. She graduated from Langston University in Oklahoma with honors and hoped to become a lawyer. As a site by the Oklahoma Historical Society explains, Blacks were not allowed to attend white state universities such as the University of Oklahoma which had a law school. Instead, Oklahoma actually provided funding for Blacks to go outside the state of Oklahoma and attend law schools and graduate schools that accepted them.

At the urging of the National Association for the Advancement of Colored People (NAACP) twenty-one-year-old Fisher agreed to seek admission to the University of Oklahoma’s law school in order to challenge Oklahoma’s segregation laws and achieve her lifelong ambition of becoming a lawyer.

Ada Lois Sipuel Fisher

The president of the University of Oklahoma agreed that Fisher had the necessary credentials, but pointed out that Oklahoma statutes prohibited whites and Blacks from attending classes together. The laws also made it a misdemeanor to instruct or attend classes comprised of mixed races. Had they admitted Fisher, the president would have been fined up to fifty dollars a day, and the white students who attended class with her would have been fined up to twenty dollars a day.

On April 6, 1946, Fisher filed a lawsuit in the Cleveland County District Court, prompting a three-year legal battle. The future U.S. Supreme Court justice, Thurgood Marshall, represented Fisher. She lost her case in the county district court and appealed to the Oklahoma Supreme Court. It sustained the ruling of the lower court, finding that the state’s policy of segregating whites and Blacks in education did not violate the United States Constitution.

Fisher then filed an appeal with the U.S. Supreme Court. On January 12, 1948, the court ruled per curiam in Sipuel v. Board of Regents of the University of Oklahoma (332 U.S. 631) that Oklahoma must provide Fisher with the same opportunities for securing a legal education as it provided to other citizens of Oklahoma:

The State must provide it for her in conformity with the equal protection clause of the Fourteenth Amendment and provide it as soon as it does for applicants of any other group.”

According to Supreme Court Associate Justice John Paul Stevens, who sat in the gallery and watched Marshall argue the case before the court on January 8, 1948, Marshall was “respectful, forceful and persuasive – so persuasive that on the following Monday – only four days after the argument – the Court unanimously ruled in Sipuel’s favor.”

Fisher shown with lawyer Thurgood Marshall to her right

The case was remanded to the Cleveland County District Court to carry out the ruling.

Following the Supreme Court’s favorable ruling, the Oklahoma Legislature, rather than admit Fisher to the Oklahoma University law school or close the law school to students both Black and white, decided to create a separate law school exclusively for her to attend. As Melvin Hall writes for the Oklahoma Historical Society, the new school, named Langston University School of Law, was thrown together in five days and was set up in the State Capitol’s Senate rooms. It was not be any means “equal.”

On March 15, 1948, Fisher’s lawyers filed a motion in the Cleveland County District Court contending that Langston’s law school did not afford the advantages of a legal education to Blacks substantially equal to the education whites received at OU’s law school. The Cleveland court ruled against her, averring that the two state law schools were “equal.” The Oklahoma Supreme Court upheld the finding.

Fisher’s lawyers announced their intention to again appeal to the U.S. Supreme Court, and the Oklahoma attorney general knew it was a lost cause to argue equality in front of the same court.

As a result of this concession, on June 18, 1949, more than three years after Fisher first applied for admission to the University of Oklahoma College of Law, she was admitted. She enrolled on June 18, 1949, becoming the first African American woman to attend an all white law school in the South.

Ada Lois Sipuel Fisher

It was not a total experience in “equality”: Fisher was forced to sit in the back of the room behind a row of empty seats and a wooden railing with a sign designated “colored.” All of the Black students enrolled at the University of Oklahoma were provided separate eating facilities and restrooms, separate reading sections in the library, and roped-off stadium seats at the football games. These conditions persisted through 1950.

But as Hall contends, the end of segregation in higher education had already begun. In 1948 a group of six Black Oklahomans applied to University of Oklahoma’s graduate schools in disciplines ranging from zoology to social work. All were denied admission under the same statute that denied admission to Fisher. Thurgood Marshall selected one of the six students, George W. McLaurin, to present yet another challenge to segregation in higher education. On June 5, 1950, the U.S. Supreme Court ruled in McLaurin v. Oklahoma State Regents, that the restrictions of segregation imposed on McLaurin at OU impaired and inhibited his ability to study.

Meanwhile, in August, 1952 Fisher graduated from the University of Oklahoma College of Law. She earned a master’s degree in history from the University of Oklahoma in 1968. After briefly practicing law in Chickasha, Fisher joined the faculty of Langston University in 1957 and served as chair of the Department of Social Sciences. She retired in December 1987 as assistant vice president for academic affairs. In 1991 the University of Oklahoma awarded Fisher an honorary doctorate of humane letters.

On April 22, 1992, Gov. David Walters appointed Dr. Ada Lois Sipuel Fisher to the Board of Regents of the University of Oklahoma, the same school that had once refused to admit her to its College of Law. As the governor said during the ceremony, it was a “completed cycle.” The lady who was once rejected by the university was now a member of its governing board.

In April 1992, Gov. David Walters appointed Fisher to the OU Board of Regents – the very group that had once rejected her. Gov. Walters said during the ceremony it was a “completed cycle.” Via UO College of Law

Fisher died on October 18, 1995. In her honor the University of Oklahoma subsequently dedicated the Ada Lois Sipuel Fisher Garden on the Norman campus. At the bottom of a bronze plaque commemorating Fisher’s contribution to the state of Oklahoma, an inscription reads, “In Psalm 118, the psalmist speaks of how the stone that the builders once rejected becomes the cornerstone.”

December 16, 1950 – President Truman Declares National State of Emergency Over Communist Threat

On this day in history, President Harry Truman declared a national emergency over the perceived threat of communism he felt had just increased exponentially by the massive Chinese intervention in the Korean War.

The United Steel Workers of America threatened a strike at that very time, which would have imperiled steel production at a time when nearly all military weapons required steel.

Thus Truman also issued Executive Order 10340, which followed the national emergency declaration, so Truman could order the Secretary of Commerce to take possession of and operate plants and facilities of steel companies to ensure the manufacture of “the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world.”

President Truman signing a proclamation declaring a national emergency that initiated U.S. involvement in the Korean War

Proclaiming that “Communist imperialism” threatened the world’s people, Truman called upon the American people to help construct an “arsenal of freedom.”

Despite Truman’s argument that his position as commander-in-chief afforded him the power to make all military decisions, the Supreme Court ultimately ruled 6-3 in Youngstown Sheet & Tube Company v. Sawyer (343 US 579, 1952), that Truman lacked the constitutional authority to nationalize the steel industry. As summarized by Oyez:

The Court found that there was no congressional statute that authorized the President to take possession of private property. The Court also held that the President’s military power as Commander in Chief of the Armed Forces did not extend to labor disputes. The Court argued that ‘the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.’”

Review of “A New Birth of Freedom” by Charles L. Black, Jr. – Examination of Human Rights Via Declaration of Independence & 9th and 14th Amendments

Professor Charles Lund Black, Jr. (1915-2001), was one of the leading constitutional law scholars of the twentieth century. In this restatement of much of his life’s work, he attempted to put the jurisprudence of human rights on firm legal ground.

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Black looked to three sources for human rights: the Declaration of Independence, the Ninth Amendment, and the “privileges and immunities” clause of the Fourteenth Amendment.

The Declaration declares “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The Ninth Amendment provides that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Article 1 of the Fourteenth Amendment says “1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Black considered the Declaration of Independence to be not only a source of law, but “law” itself. Why not? After all, it is the founding document that “established” the United States.

But even if the Declaration is not considered “law,” the ninth and fourteenth amendments are most certainly law – national law, which Article VI of the Constitution, provides is the supreme law of the land, superior to anything enacted by any of the “several states.”

The ninth amendment, though rarely cited in Supreme Court opinions, as indicated above states that the failure of the constitution to enumerate certain “rights” shall “not be construed to deny or disparage others retained by the people.” But what are those unenumerated rights? Black proposed they should include those mentioned in the Declaration, which was adopted only thirteen years before the passage of the Ninth Amendment.

And because the Ninth Amendment applies only to the Federal Government, the Fourteenth Amendment is needed to protect citizens from the actions of the states, which, Black pointed out, are the principal abridgers of human rights.

Although the 14th Amendment has acted as a check on actions by the states to limit human rights, the jurisprudence surrounding it has been faulty. The federal courts have relied on the “due process” clause of the amendment to find various state actions unconstitutional. This is all well and good where the state action was an unfair procedure (process), but that clause’s language simply does not seem to cover an unfair or otherwise constitutionally inappropriate substantive provision.

Professor Charles L. Black

Professor Charles L. Black

Black contended that reliance on the due process clause to invalidate overreaching by state governments has resulted in some poor decisions and fuzzy analysis. Instead, he pointed to the privileges and immunities clause, augmented by the 9th Amendment and a reference to the Declaration of Independence, as a better guide to the human right jurisprudence.

Black further argued that those three sources of human rights not only protect against state infringement, but also impose on Congress an affirmative constitutional duty to see that all citizens have a decent chance to “pursue happiness.” He said, “There is then nothing exotic to the Constitution in the proposition that a constitutional justice of livelihood should be recognized….” He wanted our national debate about the elimination of poverty to shift from a matter of compassion to one of a constitutional right. In his words, “The general diffusion of material welfare is an indispensable part in the general diffusion of the right to the pursuit of happiness.”

Black believed that “the pursuit of happiness” should be adopted as a fundamental right, created by the Declaration of Independence, incorporated in the Constitution and imposed on the federal government through the Ninth Amendment, and imposed on the states through the privileges and immunities clause of the Fourteenth Amendment. The simple insight of the right to pursue happiness would reach out to every field of human rights:

It would make plain the wrong in every kind of discrimination hurtful to women. It goes to the essence of the wrongs done by the law and outside the law to those having homosexual preferences. It could clarify the ultimate grounds of the banning of racial discrimination against blacks and other racial minorities.”

Moreover, we need not fear that such an extension of such rights would go “too far.” After all, the law effectively limits the right of free speech and religion. An analysis similar to that which prohibits yelling “fire” in a crowded theater (limiting speech) and prohibits ritual animal sacrifice (limiting religion) would keep pursuit of happiness jurisprudence within reasonable bounds.

Black dedicated the book to Abraham Lincoln, who also looked to the Declaration of Independence as a source of “law” when he referred to it in the Gettysburg Address. Black thought perspicaciously and wrote clearly; this exceptionally good book is highly recommended.

Published by Putnam, 1997

October 20, 1669 – Virginia Passes Law Exempting Slave Owners from Punishment for Killing Slaves “if Provoked”

Virginia led the way in legislation punishing slaves and also in removing punishments for whites who abused them in any way. Other colonies then followed Virginia’s example.

As the late civil rights advocate and federal court judge A. Leon Higginbotham Jr. wrote for the Washington Post:

With each succeeding decade, the Virginia legislators, expressing a mixture of fear, greed and prejudice, simply reduced the privileges and rights of blacks. They rationalized their actions on the ground of security, without religious or moral qualm whatsoever.”

In “Law and the Making of Slavery in Colonial Virginia” by Ashton Wesley Welch, Dept of History, Creighton University (online here) the author points out:

There was no legal declaration that Africans were to be slaves, but rather a series of cases, followed by legislation, that dealt with the practical problems arising from the custom of holding Africans as slaves. The effect of these laws and deci­sions was to make it increasingly difficult for Blacks to be any­ thing but slaves. The paths of escape from this condition were gradually narrowed until choked off nearly altogether.”

Landowners purchased slaves imported from Africa primarily in the 1600s – Source: Schomburg Center, New York Public Library, Negroes just landed from a Slave Ship

One of these laws, passed on this day in history, removed criminal penalties for enslavers who killed enslaved people resisting authority. The assembly justified the law on the grounds that “the obstinacy of many [enslaved people] cannot be suppressed by other than violent means.” The law provided that an enslaver’s killing of an enslaved person could not constitute murder because the “premeditated malice” element of murder could not be formed against one’s own property.

You can read the text of the statute here.

October 17, 1871 – President Ulysses Grant Declares Martial Law & Suspends Habeas Corpus Following KKK Violence Against Blacks in South Carolina

The Ku Klux Klan, formed in 1866 in Tennessee, spread quickly throughout the South. It was an organization of “night-riding white supremacists who terrorized Black families, and a good many white Republicans, as it sought to cripple the Republican party and its supporters, which included virtually all African-Americans.” (Ryan, Allan A., Amos Akerman: Grant’s Attorney General Who Broke the Back of the Ku Klux Klan (July 4, 2021). Available at SSRN here.

Lou Falkner Williams, in “The Great South Carolina Ku Klux Klan Trials, 1871-1872, an online dissertation for U. Of Florida, observed that “The Ku Klux Klan was the white solution to a Black population which refused to stay in its place and maintain a slavelike demeanor.”

As Eric Foner, a preeminent historian of Reconstruction, described the Klan, “It was a military force serving the interests of the Democratic party, the planter class, and all those who desired the restoration of white supremacy.” (Eric Foner, Reconstruction, America’s Unfinished Revolution, 1863-1877, pp,. 425-26)

“All those” of course consisted of white males.

During the presidential campaign of 1868, the KKK emerged as a “paramilitary wing” of the Democratic Party. Robert J. Kaczorowski, in “Federal Enforcement of Civil Rights During the First Reconstruction,” 23 Fordham Urb. L.J. 155 (1995), reports that the KKK “embarked on a campaign of terror for the purpose of destroying the Republican Party in the Southern states and reducing Southern Blacks to the control of white supremacists.” After Grant was elected to the presidency, terrorist acts by the KKK increased. Thus, Kaczorowski notes, “Congress created the Department of Justice in 1870 in large part for the purpose of providing more effective protection against Klan terrorism.”

In April, 1871, President Grant signed the Ku Klux Klan Act, which made it a federal crime to deprive American citizens of their civil rights through racial terrorism. He then sent US Attorney General Amos T. Akerman along with Army Major Lewis Merrill to South Carolina to investigate reports of violence against newly freed Blacks. According to the Equal Justice Initiative, in York County alone they found evidence of eleven murders and more than 600 whippings and other assaults.

Amos T. Akerman

Lou Falkner Williams wrote that “Akerman left South Carolina convinced that ‘from the beginning of the world until now,’ no community ‘nominally civilized, has been so fully under the domination of systematic and organized depravity.’” (p. 94). He concluded the KKK activities “amount(ed) to war,” and recommended to President Grant that he use the full extent of his powers to suppress the KKK in South Carolina.

On October 12, 1871, President Grant warned nine South Carolina counties with prevalent KKK activity that martial law would be declared if the Klan did not disperse. The warning was ignored. On October 17, 1871 – this day in history – President Grant declared martial law and suspended the writ of habeas corpus in the same nine counties. Once he did so, federal forces were allowed to arrest and imprison KKK members and instigators of racial terrorism without bringing them before a judge or into court.

Many affluent Klan members fled the jurisdiction to avoid arrest but by December 1871 approximately 600 Klansmen were in jail. More than 200 arrestees were indicted, fifty-three pleaded guilty, and five were convicted at trial. Klan terrorism in South Carolina decreased significantly after the arrests and trials but racial violence targeting Black people continued throughout the South for decades.

You can read President Grant’s proclamation suspending habeas corpus here.

October 14, 1656 – Massachusetts Enacts a Law Prohibiting “Quakerism” or Harboring Quakers

The Massachusetts Bay Colony in the 1650s was a Puritan stronghold with little tolerance for other religions. Carl Sigmond, author of “Quakers fight for religious freedom in Puritan Massachusetts, 1656-1661” in the Global Nonviolent Action Database, contended that “A fear was embedded in the Puritan society that if they started to admit outsiders, they would lose their political and religious control of the colony.”

Beginning in 1656, he noted, members of the newly formed Religious Society of Friends (Quakers) started to arrive in the Massachusetts colony on ships from England, where Quakerism had recently emerged. The Quakers who arrived in Boston’s harbor demanded that they be allowed to live in Massachusetts and practice their own religion freely. They were greeted by intense hostility and were often forced to board the next ship out.

They continued to come, however, and thus governors of Massachusetts Bay and Plymouth both took legal steps to prevent Quakers from entering their colonies.

Quakers outlawed in Plymouth, via MassMoments

As a Massachusetts online history site reports, in late 1656 and 1657, the General Court passed a series of laws that outlawed “the cursed sect of heretics commonly called Quakers,” as they were named in the first act of this nature passed on this day in history. Captains of ships that brought Quakers to Massachusetts Bay were subject to heavy fines; so was anyone who owned books by Quakers or dared to defend the Quakers’ “devilish opinions.”

As for Quakers themselves, it was decreed that “what Quaker soever shall arrive in this country from foreign parts, or shall come into this jurisdiction from any parts adjacent, shall be forthwith committed to the House of Correction; and, at their entrance, to be severely whipped, and by the master thereof be kept constantly to work, and none suffered to converse or speak with them, during the time of their imprisonment, which shall be no longer than necessity requires.”

You can read the text of the law here.

October 6, 1787 – Founding Father James Wilson Delivers One of the 1st Public Defenses of the Proposed U.S. Constitution

The Liberty Fund Network points out that James Wilson was a dominant figure in the founding of the American nation:

Wilson was one of only six persons to sign both the Declaration of Independence and the Constitution; only Gouverneur Morris spoke more frequently in the Philadelphia Convention of 1787; and scholars rank Wilson as the second most influential member of that convention, behind only James Madison.”

James Wilson

In spite of his contributions, however, he “continues to struggle for attention in comparison with the other founders at least in part because of his personal life.” Apparently his quest for wealth led him to engage in dubious land-development schemes and he actually became the only justice of the Supreme Court ever imprisoned for debt. These distinctions rendered him undesirable for inclusion in the pantheon of American founders.

The Liberty Fund notes that in 1787, however, Wilson played an important role and contributed a great deal to the new constitution. He was a staunch advocate for separation of powers that included an independent and powerful judiciary, a popularly elected president, and a bicameral legislative branch.

His colleagues selected him to be one of the six delegates who reported the final document for acceptance, a genuine honor to a person uniformly recognized as one of its chief architects. And Wilson also played a decisive role in the ratification of the Constitution in his important home state of Pennsylvania.

On this day in history, James Wilson gave the “State House Yard Speech” to defend the proposed constitution. By the end of 1787 it had been reprinted in thirty-four newspapers in twelve states and circulated throughout the colonies as a pamphlet. Historian Bernard Bailyn observes that “in the ‘transient circumstances’ of the time it was not so much the Federalist Papers that captured most people’s imaginations as James Wilson’s speech of October 6, 1787.

In this speech he specifically addressed the objections bruited about provisions in the constitution, such as the toleration of a standing army in peacetime; the perceived threat to state governments by an overarching federal government; and the power of direct taxation. Ironically, considering his personal predilections, and echoing similar sentiments by George Washington, he stated:

It is the nature of man to pursue his own interest, in preference to the public good. . . . . Every person therefore, who either enjoys, or expects to enjoy, a place of profit under the present establishment, will object to the proposed innovation [of the constitution]; not, in truth, because it is injurious to the liberties of his country, but because it affects his schemes of wealth and consequence.”

In the speech he notably pointed out that the nation’s founders knew the constitution they had created was imperfect and they assumed that future generations would fix their mistakes and regularly adapt the document to changing times. He concluded:

If there are errors, it should be remembered, that the seeds of reformation are sown in the work itself, and the concurrence of two thirds of the congress may at any time introduce alterations and amendments. Regarding it then, in every point of view, with a candid and disinterested mind, I am bold to assert, that it is the best form of government which has ever been offered to the world.”

You can read the entire speech here.

James Wilson Statue in Signers’ Hall at the National Constitution Center in Philadelphia

October 4, 1636 – First Legal Code Instituted in North America

Plymouth Colony was an English colonial venture in North America set up in 1620. The settlement, which served as the capital of the colony, is today the modern town of Plymouth, Massachusetts, located in the southeastern corner of the present day state.

Seal of the Plymouth Colony

The General Court of the Plymouth Colony was the original colonial legislature of the Plymouth colony and instituted a legal code on this day in history. It not only stipulated that all laws were to be made with the consent of the freemen of the colony [note free and men] but provided “That Justice and Right be equally and impartially Administred unto all, not sold, denied or causelesly deserted unto any. [sic]” Note: causelessly. The rest of the document set out the causes, which were numerous indeed, and reflected the strict religious orientation of the colony.

For example, any child over the age of 16 could be put to death “or otherwise severely punished” for cursing “their Natural Father or Mother” or for being “Stubborn and Rebellious.” There was to be no gambling, and no strange apparel “to lascivious and evil ends and purposes.” Drunkenness justified punishment as well. In fact, there are a great many behaviors that mandate punishment by whipping or stockade or otherwise.

Most histories of the code, however, prefer to emphasize that it guaranteed citizens the right to a trial by jury.

You can read the full text of the code online, here.

September 6, 1789 – Thomas Jefferson Writes to James Madison that Every Constitution Should Expire Naturally After 19 Years

Jefferson, writing from Paris to Madison, averred that “no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.” He therefore argued (based on the lifespans of the time) that

Every constitution then, & every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, & not of right.”

Thomas Jefferson as a young man

What about if subsequent generations had the power of repeal? Jefferson contended this was not workable because of the following factors:

The people cannot assemble themselves. Their representation is unequal & vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents: and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal.”

Therefore, he concluded, the earth should belong to the living, and not to the dead.

You can read his entire letter here.